April 13, 2012

"If this case goes to trial, Zimmerman will almost definitely be found 'not guilty' on the charge of second-degree murder," opines John R. Lott Jr.

Some extremely relevant information from the police report is completely excluded [from affidavit of probable cause]: There is no mention of the grass and wetness found on the back of Zimmerman’s shirt, the gashes on the back of his head, the bloody nose, or the other witnesses who saw Martin on top of Zimmerman, beating him, before the shot was fired. There is not even an attempt to say that the police report was in error; instead the affidavit just disregards it.

Even if everything in the affidavit is correct, it does not even begin to deal with the most crucial question: Who attacked whom? Even if it is true that “Zimmerman confronted Martin and a struggle ensued,” there may have been no wrongdoing on Zimmerman’s part. “Confronted” does not mean “provoked” or “assaulted.” It could simply mean that Zimmerman followed Martin and asked him what he was doing in the neighborhood. Surely Zimmerman had the right to investigate a strange person in his neighborhood. The police operator’s advice that “we don’t need you to do that” was merely suggestive, not an order to stop. Indeed, the police had no authority to give Zimmerman such an order.

Now take the charge of “second degree” murder. There is no way that the affidavit justifies such a charge. In Florida, second-degree murder is defined as “the unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” But if Zimmerman was being beaten, there was no “depraved mind regardless of human life,” and the act “imminently dangerous to another” would be justified as self-defense.

Hispanic isn't a cohesive group. Why would Peruvians share allegiances with Mexicans, El Salvadorians, Cubans, etc.? They all have different cultures. One self-proclaimed Hispanic leader has already smeared Zimmerman. Given the left-ward bent of these types, my guess is that they'll follow the mob as long as it suits them.

"The prosecutor wasn’t required to go to the grand jury for the indictment, but the fact that she didn’t in such a high-profile case is troubling. Everyone knows how easy it is for a prosecutor to get a grand jury to indict, because only the prosecutor presents evidence. A grand-jury indictment would have provided political cover; that charges were brought without one means that the prosecutor was worried that a grand jury would not give her the indictment."

You're right that Cubans are not part of a cohesive group with Peruvians, etc. However, Hispanics as a group have long struggled against their "lesser minority" status. If white and black liberals are willing to sacrifice a Peruvian to draw blacks to the democratic party, Hispanics as a whole will notice and band together.

This is supposed to be a legal blog (a bleagle?). Can someone tell me, is this a normal charging affidavit? This looks to me like a sloppy, half-assed stab at sticking a few semi-relevant semi-facts together. Dershowitz says it's "irresponsible and unethical" and "won't make it past a judge" But I suspect Dersh doesn't spend a lot of time in front of judges.

On the other thread, a commenter of true brilliance posited the following situation: Clint Eastwood is in a strange neighborhood. He's being followed by some punk. Does Clint run home? No way. He hides behind an awning and then decks the punk stalker with a single punch. When the punk goes down, Clint sees that the goddammed punk is carrying a weapon. Clint jumps on top of of him to make sure he doesn't use it. Sadly, the punk has better reflexes than Clint, and bakes Clint's day. In this situation, is the guilty party Clint or the punk stalker?

The "struggle ensued" part is the crux. The determination of whether this was a second degree murder would hinge on how that struggle began, and who initiated it, and how. I find it odd that a prosecutor would not include that basic information.

I listened to rather than watched Corey's presser and was annoyed by a number of things: All the shout outs and thank yous as though she were accepting an award; the length and political tone of what was basically a speech; the characterization of Martin's parents as "cute"; the fact that when she was first appointed she promised the Martin's to get "justice" for Trayvon.

Later I saw a clip of the beginning of the presser and was even more annoyed by her jaunty affect, all smiles, beaming from the podium as she acknowledged and waved to people in the audience. Alan Dershowitz, who agrees with Lott, was disgusted by her re-election campaigning. I think it was more than just a bid to retain her current job. I think she's now picturing herself in the Florida AG's office and beyond. To say she's rubbed me the wrong way is to put it mildly. And, yes, Nifong jumped immediately to mind.

There was a good comment somewhere that, if he is acquitted, it will be close to the election and Obama may not want an obvious racial case a la Rodney King, pursued just then. After all, Obama has the rioter vote locked up.

It's hard to know what to make of the state investigator, Angela Corey. In her press conference she said that Trayvon Martin's mother has "revealed" that the person screaming on the 911 call tape was her son. That is hardly an objective review of the evidence. She should have said Martin's mom "claimed" or "reported" or "asserted" that the voice was that of her son, or simply said what the affidavit said, that Trayvon's mom "identified" the voice as that of her son.

When Corey's use "reveal" it sounds like she's saying there was no doubt that the voice was indeed that of Trayvon, but it hadn't been made known publicly before.

I also can't understand why a state investigator would ask viewers to pray for Trayvon's family. Her job is determine facts, not prejudge the case and ask for sympathy for one side. Emotionally she might completely identify with Trayvon's family. That's fine. She's a human being. She's entitled to empathize her ass off if she wants--but not while she's speaking as a representative of the state.

Otherwise it suggests she's already conducted the trial, convicted Zimmerman and now is ready to help administer the lethal injection or whatever it is they do to "depraved" persons convicted of second degree murder these days.

Gene said"It's hard to know what to make of the state investigator, Angela Corey. In her press conference she said that Trayvon Martin's mother has "revealed" that the person screaming on the 911 call tape was her son. That is hardly an objective review of the evidence."

And it fails to mention that the father initially said it was NOT Trayvon's voice.

Alan Dershowitz says there is no way Zimmerman will be convicted of second degree murder--the facts do not support it and a judge will throw out the charges or there won't be enough evidence to convict.

Given that the Florida prosecutors certainly know this too, they probably plan to encourage the US Attorney General to also go after Zimmerman on federal charges of violating Martin's civil rights. This way if a state judge throws out the charges or a state jury fails to convict him, the federal government can rush ahead with a civil rights trial before anyone starts to riot.

I don't know if it's legal, but they might even prefer to conduct both trials simultaneously to let any riot-prone personalities know that they're busting their ass with every tool at their disposal to make sure Zimmerman never walks.

So far there has been no move to charge Zimmerman with a hate crime but I doubt as if that will stop a prosecution on those grounds anyway. We know that Zimmerman called Martin "a fucking thug." And talked his wearing a hoodie. Since it's mostly blacks who wear hoodies, a hoddie wearing thug is in effect a black thug and thus a hate crime after all.

Assume that her goal is a higher office. Assume, moreover, that she believes she has to satisfy Hispanics and Blacks in the current matter. Whites matter less.

So: she placates Blacks by overcharging AND by seeming to be in their camp (praying with Martin's family, praising the family attorneys, etc.)

But she knows that no judge or jury will ever convict Zimmerman of second degree (or probably of anything else). She can later cynically claim that the second degree was the proper thing to do since she knew that Zimmerman (half Peruvian) would be acquitted of the charges.

It's a risky play for her, but might pay off big time.

This theory is hardly consistent with support of the judicial system, but then, who cares?

The overcharging in this case (and this is an instance of gross and unethical overcharging wholly unsupported by any legitimate facts) was not done to coerce a guilty plea, but it was done instead to solicit a compromise verdict by the jury.

There will be disagreement in deliberations. Many, probably most, will initially vote to acquit outright. But there will be some hold-outs, some jurors who are totally unmoved by facts or evidence or truth and who would gladly join the lynch mob outside. The hold-outs will be bitching that it is not a capital offense.

And then those who think there should be an outright acquittal will start thinking, well, I do have some doubts here, better safe than sorry. And then they compromise on a manslaughter conviction, even though they know that the evidence does not support it.

"Has there been a release of a recording of the supposed hrs of discussion with Z at the station? It would seem strange to have only crappy video documentation of Zimmerman's head wounds."

Walter. The media is already trying this case outside of the courtroom as much as it can (and so are we). Don't encourage them.

You're not supposed to put all your evidence out before the public before trial. It would deprive the defendant of a fair trial. Because of the very thing we're doing--deciding the case without a legal presentation of evidence.

Corey actually agrees with the call made by the first state's attorney? Zimmerman should face no charge.

That's a hell of a hot potato for her to deal with.

Complete integrity requires her to make the announcement and not charge Zimmerman. The costs to her political ambitions would be huge and there would likely be riots immediately.

Pass the buck. Let the Grand Jury make the call. Still a hit to her political ambitions and still riots.

Charge Zimmerman with manslaughter. Good for her political ambitions and likely forestalls riots, but if she's of the opinion that Zimmerman shouldn't be charged in the first place, then Zimmerman faces the real risk of conviction.

Charge Zimmerman with 2nd degree murder, don't plea down. Try the case. She can't make a case beyond reasonable grounds. People saw the case unfold, all the evidence is presented. Jury returns a verdict of not guilty.

Corey tried her best, she wins sympathy points from blacks for her effort, others accuse her of incompetence for not charging manslaughter, but at least Zimmerman had to face justice. They can make some kind of peace with what has transpired. Zimmerman has been held in custody for a year or however long the trial lasts, tempers have cooled, he's paid some price.

Is it ethical for Corey to overcharge? No. However, if we accept the premise that Zimmerman shouldn't be charged, then the above conjecture offers a path, with bending of ethical rules, that gets the least worst outcome and all that is needed is for Zimmerman's right to fair process to be thrown under the bus. Corey has the power, Zimmerman doesn't, so she is in the driver's seat and that's the way it is.

Riots, riots, riots goes the Sean Hannity drum beats of fear, while the Martin family has been sending out a peaceful and non-violent message from their first interviews.

They are using another Martin's strategy. And it will work again this time.

The last time it was tried, the only violence were peaceful marchers being attacked by police...well there was the time that King's stubborness in Memphis made James Earl Ray so afraid that he had no choice except shooting that Martin down like a dog.

For all of you under 40 somethings, you are getting to watch a replay of Martin Luther King's role first played 42 years ago.

Except you are admitting to something you didn't do and are not guilty of. And even if you enter an Alford plea, still the consequences are the same --> criminal conviction, considerable chance of prison, life ruined with or without prison. And likely that would open you up to federal civil rights charges, not forestall them.

For all of you under 40 somethings, you are getting to watch a replay of Martin Luther King's role first played 42 years ago.

It's been a long time since then. What we remember are the LA riots, which are more likely to happen again then the MLK stuff (not that I actually think there are going to be any riots).

It's not 1960 anymore, dude. I wasn't alive then. I think some older folks have leftover guilt for the way things were or something, but really? Things have changed. People my age never did awful things to any other race and we're kind of tired of hearing about it.

Tango: Charge Zimmerman with 2nd degree murder, don't plea down. Try the case. She can't make a case beyond reasonable grounds. People saw the case unfold, all the evidence is presented. Jury returns a verdict of not guilty.

I saw similar conjecture on another site. Its the only thing that makes sense. She's not going to throw the case, she's going to argue to the best of her ability but she knows she's going to fail. Its like ordering a mathmetician to prove 2+2=5.

Prosecutors have a DUTY TO SEEK JUSTICE, as Ms. Corey should well know. But most of them violate it when faced with the TV opportunity of a lifetime and an out of control black community. Clearly that happened here.

You'll know when Zimmerman gets a "too good to true" plea offer from the prosecution.

Ms. Corey doesn't want a trial, she wants TV facetime, a Black community that won't riot, and another notch on her gun. So does the Governor.

But, she'll accept a judge-ordered outcome based on no probable cause or on the SYG law. IF there's a judge in the county with sufficient political courage.

I'm about to send a $ big check to his lawyer when he finds one and sticks with one.

The DA charges the highest offense possible. On Defense request, the Jury will be charged on lesser included offenses and may compromise on one.

State prosecutors are not hermetically sealed and blind technicians of fairness. That would make trying to convict a defendant into an unethical act.

Incorrect. A prosecutor is not like a party's lawyer in a civil case. The prosecutor has an obigation to assure that justice is done. That precludes the prosecutor from bring a charge which the evidence can not support just to get a plea deal.

Being a prosecutor is having a position of extraordinary power and therefore they have duties to the court and to the defendant as well as the state. Unfortunately high profile prosecution has become a pathway to big bucks law practice, and too many prosecutors are interested in getting scalps not justice.

Whether Corey is in this group is still open to question, but these analyses do not put her in a good light.

@Leslyn,I wrote ""Has there been a release of a recording of the supposed hrs of discussion with Z at the station?It would seem strange to have only crappy video documentation of Zimmerman's head wounds."

you wrote:Walter. The media is already trying this case outside of the courtroom as much as it can (and so are we). Don't encourage them."

If there are clear photos that document the head injuries, it seems irresponsible to only release security video. Eventually it got out that Z spent considerable time there talking to police. I would expect this to be recorded..yet no one seems to even be curious about that. I agree that everything that gets released leads to consideration/manipulation in the court of public opinion. But so does everything that doesn't.(NBC)

Tradguy--It's amazing that the liberal worry about state power evaporates every time the state seeks to punish someone they don't like. The power of prosecution is quite an awesome one. Any honest liberal (Dershowitz comes to mind) would be concerned about an abuse of that power.

David: A prosecutor is not like a party's lawyer in a civil case. The prosecutor has an obigation to assure that justice is done. That precludes the prosecutor from bring a charge which the evidence can not support just to get a plea deal.

The standard of ethics for prosecutors is more strict, is that what you mean?

So using tactics to pitch a plea deal would actually be more corrupt than what we suspected, yes?

@David...The difference between Murder 2 and Manslaughter is a killer's thoughts at the time he kills.

Murder2 is for a man who left home that day not planning a killing, but got into a fight and he was so mean that he took the opportuniy of killing the opponent intentionally, even if his intention was only formed in a moment of passion, for example a sudden road rage by a paranoid cocaine user. This can describe Zimmerman under one possible set of facts. It describes most killers.

Manslaughter is a killing that just happens during a fight. The killer hits a man in the nose, and the man falls down and hits his head on a sharp object and dies, or he hits a him and he falls off of the bridge and drowns. This is not an intentional killing at any point, but it is an intentional fight that results in a man's slaughter/death.

How would she know which charge that fits until her case is actually presented with real live witnesses?

The answer often comes down to how the eyes and countenance of the accused killer appears to the jurors. And that could be a big problem for Zimmerman.

Why does the fear of riots drive everything? So the schvartzes will riot and burn down their own neighborhoods. The reaction will be twofold: a massive electoral victory for Romney; finally, finally, FINALLY the long overdue acceptance that Senator Moyniham was right when he advocated benign neglect of the chaotic underclass. You rioted? You befouled your bed? Lie in it. We're not going to remake your bed for you. Next time THINK about consequence before you, uh... express your legitimate rage.

What would be truly funny for righties is if it turned out later Zimmerman was actually a OWS protester, sympathetic to left wing activists groups. Or if Zimmerman worked at an ACORN office at some point. Fuck! That's like finding out you were just hitting on a transvestite in Vegas.

Because this thread is just everyone giving opinions on stuff we can't know or find out about, I researched the one statement that stuck in my head..."My ability to make any reasoned assessments of the case has just been rendered inoperative by discovery.

Said discovery being that the judge in the case is something of a hottie.

I'll make you a wager. $5 sez that 90% of the conservatives in this country don't care where, or what, or who, someone sleeps with, if they are innocent of a crime, they don't want a lynching. The left I dare say, is not quit so forgiving, especially to one of their apostates.

The part I find particularly distasteful, is the extent that Obama, Holder, Sharpton, et al, have lowered the bar on American jurisprudence.

@Free@last

Smile when you say that bitch. I got relatives of every color, including black. And they're a whole lot better than your racist jackassism. Every group has its assholes.

On the other thread, a commenter of true brilliance posited the following situation: Clint Eastwood is in a strange neighborhood. He's being followed by some punk. Does Clint run home? No way. He hides behind an awning and then decks the punk stalker with a single punch. When the punk goes down, Clint sees that the goddammed punk is carrying a weapon. Clint jumps on top of of him to make sure he doesn't use it. Sadly, the punk has better reflexes than Clint, and bakes Clint's day. In this situation, is the guilty party Clint or the punk stalker?

I'm not seeing the alleged "true brilliance" there. If Clint is dumb enough to assault somebody armed with a gun, he deserves what he gets.

"Self, who the heck is this guy John R. Lott, Jr., who's opening with such authority?"

You are correct Dr. Lott is a economist who studies crime and crime "statistics." He know what he's talking about.

I'm a former prosecutor. John is correct here.

Ms. Corey is guilty of unethical overcharging but I know of no prosecutor who has ever been disciplined by the Courts for that violation. The judges are afraid of false charges too, so they leave it to the faceless voters.

"leslyn said... So I said to myself, "Self, who the heck is this guy John R. Lott, Jr., who's opening with such authority?" You are correct Dr. Lott is a economist who studies crime and crime "statistics." He know what he's talking about. I'm a former prosecutor. John is correct here. Ms. Corey is guilty of unethical overcharging but I know of no prosecutor who has ever been disciplined by the Courts for that violation. The judges are afraid of false charges too, so they leave it to the faceless voters. 4/13/12 8:31 P.M.

15 years, 30 years, an economist who studied crime--what diff? Everyone is giving their learned opinion on a case in which they don't know the evidence. Heaps of evidence from the police, crime scene investigators, and pathologist.

Carnifex said it best: "...[T]his thread is just everyone giving opinions on stuff we can't know or find out about."

free@last is a left wing hack from Huffington Post who is dropping turds here in an effort to discredt this site. If Huffington Post does not immediately denounce him and his tactics they are guilty of racism.......I wrote a hypothetical where I reversed the polarites and made Treyvon a Clint Eastwood type who assaulted someone he felt was stalkiing him. Those who cared to comment rejected my hypothetical out of hand. On both sides, there seems to be a need to demonize one party and beatify the other. If Treyvon was as suspicious as Zimmerman claimed, then Zimmerman was foolish to get out of his car and doubly foolish to let Treyvon get the jump on him. Treyvon, as later events demonstrated, was even dumber to attack Zimmerman. This is not a good outcome for either man, but I think both were imprudent--perhaps stupid is the right word--but neither was evil......@tradguy: can you explain why Jayson Wllliams is guilty of manslaughter and George Zimmerman is charged with second degree murder. It's very hard for laymen to see how such gradations are measured.

30yearProf said...Prosecutors have a DUTY TO SEEK JUSTICE, as Ms. Corey should well know.

I see Ms. Corey's job in this case a little differently. As an appointed special prosecutor, her duty is to the facts and law. That's why her telling the Martin's that she would get justice for Trayvon was out of line.

Sukie, I agree with a lot of your initial impressions of the prosecutor. And I'll state it again, I support prosecution of Zimmerman.

I don't know the details about Dershowitz and Nifong, and all the ins and outs of various high profile trials, but yes, Angela Corey seemed too personal and .... just too hokey, familiar, and so on. I want someone up there who is sober. Professional. Boring. Neutral, in a way. Just... BORING. Don't ask for prayers. I just will not be able to get over that, ever, I don't think. How stupid.

She is not doing supporters of prosecution any favors, I can tell you that.

But eh, maybe if she gets the job done in court, these little things won't matter. Guess we'll just have to wait and see.

Crime scene investigator's job is different in the sense that they are the ones responsible in examining crime scenes for physical evidence. This evidence is then evaluated if it can link the suspects to the crime scene. On the other hand, criminal investigators been given the responsibility in intensively probing criminal cases in the hopes of solving them.

Ms. Corey makes me cringe; completely unprofessional. It was as though she was accepting a pageant crown. As far as the second-degree charge, I wonder if Florida law permits the court to charge a lesser degree if the evidence supports it.

Crime scene investigator's job is different in the sense that they are the ones responsible in examining crime scenes for physical evidence. This evidence is then evaluated if it can link the suspects to the crime scene. On the other hand, criminal investigators been given the responsibility in intensively probing criminal cases in the hopes of solving them.

More important in this case, crime scene investigators/technicians look for evidence showing how the crime occurred, and relevant conditions and circumstances. Criminal investigators are sworn police officers.

If I was looking someone to blame I would look towards the voters and the people they elect that are soft on drugs. All the theft Zimmerman was afraid of was the result of drug induced needs that the police have on the backburner.

walter said, "Has there been a release of a recording of the supposed hrs of discussion with Z at the station? It would seem strange to have only crappy video documentation of Zimmerman's head wounds."

walter said, "why not point out inconsistent statements being put forth?"

@William....I looked up Jayson Williams. His wiki page said he was playing with a shot gun that went off and killed a man in the crowed of guests touring his home.

That is invountary manslaughter in Georgia. And Williams was a Pennsylvania case that he pled out to to aggravated assault or 5 years.

Nevertheless (a good lawyer word) the Jury will have to find what Zimmerman was thinking when his 9mm went off. They have the option to disbelieve Zimmerman and find that he intentionally shot Trayvon out of a sudden malice in his wicked heart caused by the fight or male territorial pride.

But Rev has it pegged. If Zimmerman sticks to his story that he was attacked from behind, pinned to the ground and was being beaten unconscous while being told he was going to die by the evil Trayvon who was actually grabbing at the exposed gun from semi-conscious Zimmerman's waist holster, and Zimmerman does not alter that memory at trial, then the jury will likely acquit. If he gets it confused and doesn't repeat it all like he earlier told it, the jury will likely compromise on an Involuntary Manslaughter verdict.

As bad as that sounds to everyone, I have never met a prosecutor who wanted to make the charges be reduced prior to trial because his evidence was a bell curve and he threw out the ends that were not as easy to prove because he/she was ethical.

Leslyn,So you're ok with the affidavit making no mention of the injuries?

So you waive away Lott based on his credentials. Do you waive away similar comments by Dershowitz so easily?

I wish most of this information hadn't been put forth. I wish this hadn't become a national issue. I wish the president hadn't waded in with premature sympathy and then gone silent when thugs were telling the press about their brand of justice and am unauthorized bounty. I wish the press hadn't beclowned themselves by distorting 911 recordings. And I wish there wasn't the ongoing sense..affidavit included..that even information in police reports could be put forth one day and then seemingly wiped away the next without explanation.no...unfortunately, I and others feel obligated to track this. It's become larger than one legal case.

7.4 MURDER - SECOND DEGREE§ 782.04(2), Fla.Stat.To prove the crime of Second Degree Murder, the State must prove the following three elements beyond a reasonable doubt:1. (Victim) is dead.2. The death was caused by the criminal act of (defendant).3. There was an unlawful killing of (victim) by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.

Definitions.An "act" includes a series of related actions arising from and performed pursuant to a single design or purpose.An act is "imminently dangerous to another and demonstrating a depraved mind" if it is an act or series of acts that:1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and2. is done from ill will, hatred, spite, or an evil intent, and3. is of such a nature that the act itself indicates an indifference to human life.In order to convict of Second Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death.

7.7 MANSLAUGHTER§ 782.07, Fla.Stat.To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:1. (Victim) is dead.(Give 2a, 2b, or 2c depending upon allegations and proof) --2. a. (Defendant's) acts caused the death of (victim).b. (Defendant) procured the death of (victim).c. The death of (victim) was caused by the culpable negligence of (defendant).

However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide:The killing of a human being is justifiable homicide and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the defendant, or to commit a felony in any dwelling house in which the defendant was at the time of the killing. § 782.02, Fla. Stat.

The killing of a human being is excusable, and therefore lawful, under any one of the following three circumstances:1. When the killing is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or2. When the killing occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or3. When the killing is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the killing is not done in a cruel or unusual manner.

(Give only if 2a alleged and proved, and manslaughter is being defined as a lesser included offense of first degree premeditated murder) --In order to convict of manslaughter by act, it is not necessary for the State to prove that the defendant had an intent to cause death, only an intent to commit an act that was not justified or excusable and which caused death.

(Give only if 2c alleged and proved) --I will now define "culpable negligence" for you. Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care toward others. In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of deadly force.

Definition."Deadly force" means force likely to cause death or great bodily harm.

Give if applicable. § 782.02, Fla.Stat.The use of deadly force is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to [himself] [herself] while resisting:1. another's attempt to murder him, or2. any attempt to commit (applicable felony) upon him.

Give if applicable. §§ 776.012, 776.031, Fla.Stat.A person is justified in using deadly force if [he] [she] reasonably believes that such force is necessary to prevent1. imminent death or great bodily harm to [himself] [herself] or another, or2. the imminent commission of (applicable forcible felony) against [himself] [herself] or another.

However, the use of deadly force is not justifiable if you find:(Defendant) initially provoked the use of force against [himself] [herself], unless:a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on (assailant).b. In good faith, the defendant withdrew from physical contact with (assailant) and clearly indicated to (assailant) that [he] [she] wanted to withdraw and stop the use of deadly force, but (assailant) continued or resumed the use of force.

Read in all cases. In deciding whether defendant was justified in the use of deadly force, you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.

If the defendant [was not engaged in an unlawful activity and] was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony.

In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and (victim).

If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty.However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved.

having charged second degree murder, will the trial judge allow the prosecution to submit the lesser charge of manslaughter to the jury (or will the defense ask for one or object to one), or will the judge require the prosecution to go for all or nothing?

Leslyn,When even police reports have been released to eth public, the distinction between facts and legal deserves consideration. But to bring it back to the post we are posting under,

"In Florida, second-degree murder is defined as “the unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” But if Zimmerman was being beaten, there was no “depraved mind regardless of human life,” and the act “imminently dangerous to another” would be justified as self-defense."

Don't trust that I've cut and pasted them right? Then go to a law library and look it up yourself.

And, yes, it is for the discretion of the trial judge, depending if the evidence supports it, to give or not a manslaughter instruction. Hence the question -- will a judge allow it if the prosecution asks for it or will the judge say at the conclusion of the evidence, "No, you charged second-degree and you are stuck with that, you don't get two bites at the apple."

And would the defense gamble on an all-or-nothing strategy? (And, yes, any time you send anything to the jury, it is a gamble, a roll of the dice, regardless of what the evidence is -- there are never any guaranteed verdicts, a jury will do whatever it will do.)

7.4 MURDER - SECOND DEGREE§ 782.04(2), Fla.Stat.To prove the crime of Second Degree Murder, the State must prove the following three elements beyond a reasonable doubt:1. (Victim) is dead.2. The death was caused by the criminal act of (defendant).3. There was an unlawful killing of (victim) by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.

I may be reading it wrong, but it seems to me that the special prosecutor is considering the fact that Zimmerman was carrying a concealed handgun, exited his vehicle, and may have approached Martin, to be the "act [that was] imminently dangerous to another and demonstrating a depraved mind without regard for human life."

The "depraved mind" part of the charge was that Zimmerman "did carry, display, use, threaten to use or attempt to use a firearm and did actually possess and discharge a firearm and as a result of the discharge, death or great bodily harm was inflicted upon any person, contrary to the provisions of ..."

In other words, Zimmerman was [legally] carrying a gun, discharged it, and Martin died as a result. That appears to be the basis for her charge that Zimmerman evinced a "depraved mind".

I know that libs hate guns, by and large, and Corey appears to fall into that category, but I think that is a bit too much, esp. in the aftermath of Heller.

One thing that scares me a bit here is that in law school, depraved mind/depraved heart type of 2nd Degree Murder was taught as someone shooting randomly into a crowd. There was no specific intent to hit anyone in particular, or, maybe hit anyone at all. But, shooting into the crowd was so dangerous that anyone doing so had a depraved heart, etc.

And, what appears to me to be a politically motivated anti-gun liberal prosecutor has taken that, and morphed it into charging someone with that crime, despite the discharge, by the evidence that has been made public so far, being in the act of self-defense. There is reason to believe (at least so far) that the gun only came into play, when Martin grabbed for it. Which is why I said that it appears, right now, that the elevation from manslaughter to second degree murder was because Zimmerman was carrying a gun. Not that he ever intentionally threatened Martin with it, or anything like that, but that he had it, and Martin ended up being killed by it.

Which is why I think that Corey charged Zimmerman based on the idea that self-defense is an affirmative defense, and therefore, it is up to the defense to plead. If Zimmerman doesn't plead the defense, then he is SOL. But, even then, I think that the intent is missing for 2nd degree murder. The intent requirement for 2nd degree is different from 1st degree, but there still is one. It isn't a strict liability crime. Rather, it is more a general intent crime, whereas as 1st degree tends is a specific intent crime. But, the place where I think intent breaks down is that Corey seems to be claiming that merely [legally] carrying a gun in a situation where there may be a confrontation is sufficient intent to support 2nd degree murder, if, in fact, the confrontation does materialize and someone dies as a result. That is a significant departure from intending to shoot into a crowd, not caring whether you hit someone in particular, or anyone in general. And, from a public policy point of view is also suspect.

That said, getting back to my point. In most states, the idea that a prosecutor would charge someone, ignoring any claims of self-defense, is deplorable, but totally understandable. The problem is that the Florida immunity statute was apparently enacted precisely for this reason - to protect against prosecutors and cops who automatically charged people who legally successfully defended themselves with deadly force from spending time in jail, awaiting acquittal based on their claim of self-defense.

Corey knew when charging Zimmerman that he claimed self-defense, and knew that she could not legally charge him without having probable cause to believe that he had not killed in self-defense. Yet, she did.

Right now, I am assuming that she is figuring that she is in the clear because he should have available an early immunity hearing. Yet, I would think from reading the immunity statute that that is not sufficient, and that that statute created at least an implied requirement in the charging information that she at least assert that she had such probable cause.

Now, obviously, she knows the laws and criminal procedure in Florida much better than I do, and so is probably, technically, in the right. But...

So is there no Florida State Bar or other? Who oversees bad, bumbling or unethical prosecutors?

Don't know any more, but the Florida bar had a bad reputation a couple of decades ago. Attorneys caught taking illegal drugs for fees were routinely apparently able to buy their way out of getting disbarred, by hiring the right attorneys.

That said, I suspect that the Florida bar is much more professional these days. The state has grown up significantly. And, even here in Arizona, prosecutorial misconduct can get you disbarred. Last week, the former Maricopa county attorney, along with two of his assistant DAs, were disbarred for a long list of ethical violations, including filing charges when they knew that the charges were time barred.

And, I don't think that it was a surprise, at least to me, that Arizona brought in a special counsel and his assistant from Colorado to do the investigation. Over the years, that state has been pretty zealous about ethically policing its prosecutors. One guy I know, an elected DA, was suspended for three years for buying pot for his wife (he had never done pot himself). And wasn't disbarred only because he did everything right after being arrested. And then there was the prosecutor who set up a sting for an attorney trading illegal guns for his services. Both got disbarred, the attorney taking the guns for fees, and the prosecutor for dishonesty - for setting up the sting and getting a fake criminal record set up for the cop pulling it off.

And, yes, it is for the discretion of the trial judge, depending if the evidence supports it, to give or not a manslaughter instruction. Hence the question -- will a judge allow it if the prosecution asks for it or will the judge say at the conclusion of the evidence, "No, you charged second-degree and you are stuck with that, you don't get two bites at the apple."

And would the defense gamble on an all-or-nothing strategy? (And, yes, any time you send anything to the jury, it is a gamble, a roll of the dice, regardless of what the evidence is -- there are never any guaranteed verdicts, a jury will do whatever it will do.)

It does look like manslaughter is completely included in 2nd degree murder (except maybe the intent, which may be where the prosecution would have the biggest problem). So, the prosecution would have an argument for the lesser included charge.

BUT, what about fairness? This may be part of the game playing that you are talking about. Zimmerman may be able to beat 2nd degree murder on either intent or I think manslaughter only through self-defense. Is the self-defense claim strong enough, all by itself? This late addition of lesser charges could change the determination of whether to go to trial or plead out significantly.

My guess is that Zimmerman goes to trial, if he loses at immunity. I think it likely that his defense will be paid for, since he already has a legal defense fund. I also think that his attorney is likely better than that the state prosecutor (Corey?) who would be trying the case.

Also, I don't see them being able to load up the charges as much as they do in many cases. Pretty much everything they could charge him with would be a lesser included crime, and if self-defense works for the 2nd degree murder and manslaughter charges, it should work for most of the rest too.

Of course, you know this area of law far better than most of the rest of us do - the closest I have come to criminal court was traffic court and a couple of DUIs.

Whoops, I forgot the arson case I was involved in a couple of years ago.

Still, criminal law is not my thing. And, I don't regret not going in that direction. I don't have the temperament for it. Have enjoyed civil litigation, but luckily haven't seen the downside of months of discovery. By the time that I joined a firm that did some huge litigations, I was too specialized to be involved in them (besides, that is what associates are for).

In other words, Zimmerman was [legally] carrying a gun, discharged it, and Martin died as a result. That appears to be the basis for her charge that Zimmerman evinced a "depraved mind".

I think it must be more than that. The murder statute says that the act is "performed pursuant to a single design or purpose" and

"is an act or series of acts that: 1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and 2. is done from ill will, hatred, spite, or an evil intent, and 3. is of such a nature that the act itself indicates an indifference to human life. (Copied from Bender, emphasis added.)

It is the nature of, and intent in "discharg(ing) the gun that makes the act murder 2.

There is forensic and pathology evidence that we don't know about that may support this if the case goes to trial.

Fen said... "Ace over at AceOfSpades makes an interesting point -there was NO bruising or damage to Martin's body other than the gunshot wound. Not only did Zimmerman NOT throw the first punch, he didn't lay a finger on him." 4/14/12 1:38 A.M.

My guess is that the veteran prosecutor did the politically expedient thing, which was to charge Z man with murder, let Z man sit in jail for several months to a year (permitting public emotions to cool down), before either dropping or reducing charges.

The prosecutor may also be trying to scare Z man into pleading to a lesser charge.

Electing prosecutors guarantees that those prosecutors will behave in politically expedient ways.

The defense will request an Arthur hearing at which the prosecutor has the burden of proving that the person committed the crime and that the presumption of guilt is great.

Again, if Corey's approach is that:

A. Zimmerman followed Martin because Martin's girlfriend said soand;B. Martin is calling for help on the 9-11 tape because his mom said so;

This woman should be run out of Florida with tar & feathers.

And for those saying we need to have a trial to find out "what happened" you are disgusting.

That isn't how things work in America, and I think we should throw you in jail for a few months and have a show trial on you to "find out what you think" and then we'll decide after you pay $250,000 in legal fees if you should go free.

I think the people who insist that "we gotta have a trial!" have been watching too much television. They expect a "mystery witness" to come parachuting in at 5 minutes to the hour and set everything to rights so that Zimmerman gets convicted, but that is not how it works in a real court.Lawyers hate surprises; the proceedings are even more carefully scripted than Congressional hearings, and all evidence must be shared with the defense well in advance. These days that means that it will also be leaked, which is what we have been seeing, and it is unlikely that anything more that really matters will come to light.

This stupid prosecutor is setting it up just like the trial of the LAPD Officers who were beating on Rodney King in 1992.

Instead of Police Brutality charges, they went for Attempted Murder to get the officers to plea out AND to satisfy racists like Rep. Maxine Waters. The officers instead said, "fuck you, try me" and the case was destroyed by their lawyers, resulting in aquittal which led to the Riots.

Unless they can get this tossed before trial, I'd say we're looking at riots when GZ is aquitted.

I think that Corey charged Zimmerman based on the idea that self-defense is an affirmative defense, and therefore, it is up to the defense to plead. If Zimmerman doesn't plead the defense, then he is SOL.

Certainly the burden is on the defendant to raise the defense and present some level of evidence. But from the later instruction, it would appear that all he has to do is raise a reasonable doubt as to whether it was not justified, that the burden is still upon the prosecution to overcome that doubt and prove that it was not self-defense.

If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty.However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved.

Maybe I'm reading the instruction too broadly, but it sounds as if all a defendant need do is get the jury to think, "well, maybe it is possible that he was defending himself?" rather than require that they make an actual finding of self-defense.

I think the people who insist that "we gotta have a trial!" have been watching too much television.

That goes for all sides -- those who want Zimmerman convicted, those who think the evidence is insufficient, and those who pat themselves on the back for being so fair and reasonable as to say, "instead of arguing in public, let's just have a trial."

There is no sure-thing in court, especially with a jury. There are no slam-dunks. It is always a roll of the dice, no matter what.

You think trying to guess what the Supreme Court might do on ObamaCare? A jury has a mind of its own and although it can be instructed on things, and a judge can technically overrule on some things, a jury will do whatever they want to do.

And how many jurors will be comfortable voting to acquit knowing that the Black Panthers might then put out a bounty on them??

I come to the discussion late. I'll probably have the last word, but, on the other hand, no one will read it.....You guys, i.e. lawyers, can throw legalese at each other all you want. But the fact remains that the crime Zimmerman is charged with is not the crime that he actually committed. He killed someone, but that's not his crime. He was an overly zealous neighborhood watchman, but that's not his crime. His real crime is that he's kind of white and until demonstrated otherwise it must be believed that he murdered Trayvon because he's a stone racist. As everyone knows, racism is the only reason a kind of white man would murder a black youth.......I also note that the demoniziation/beatification continues apace with those associated with the case. Trayvon's mother is a grieving woman, not a scheming race hustler. The DA is acting the way prosecutors are paid to act. Those friends and relatives speaking up for Zimmerman are not scheming liars......For the defense, I throw out the fact that if Zimmerman was an overzealous watchman the people that he was defending were Trayvon's extended family. Do racists patrol neighborhoods to protect their black neighbors?......tradguy: There are other accounts of Jayson Williams' crime that are far more damaging than the one given on Wikipedia.

Bender: I posted that as a favor, Walter, and not to prove anything. You're welcome.

I understand where you're coming from but on this site we've have lots of poor experiences with Leftist trolls mobys etc. People here know longer give information the benefit of the doubt unless they can go read it themselves. So try to give a link when you can, its not meant to be demanding or ungrateful, its just that these days.. "trust but verify" is the working phrase.

leslyn said...Ace over at AceOfSpades makes an interesting point -there was NO bruising or damage to Martin's body other than the gunshot wound. Not only did Zimmerman NOT throw the first punch, he didn't lay a finger on him." 4/14/12 1:38 A.M.

leslyn: Fen, where did this come from? Has a pathology report been released?

I got it from interviews with the Medical Examiner's office. But it wasn't an actual pathology report.

But I agree that after what we've seen, all media sources are now suspect.

Racism takes many forms. Zimmerman had no status to expect Martin to answer any questions. Martin had every right under the law to ignore him. From many of the comments here, I sense an unpleasant underlying racism, not surprising in a nation where 50 years ago, African-Americans and Latinos were denied equal access to public places in many states and were required to sit in the back of the bus, The 1896 Supreme Court decision in Plessy vs. Ferguson of "separate but equal" was a lie confronting the Justices every time they opened their eyes. Today, many White Americans are regrettably not further evolved than the 19th century Justices. However, the racial/ethnic demographics suggest a coming power shift in 30 years or less as the White population becomes an increasingly smaller percentage of the USA population-as a progressive White American, that day cannot come soon enough for me. Bill Honer